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Robert KUSKIE, Plaintiff and Appellant, v. Tennison S. DONG, M.D., et al., Defendants and Respondents.
OPINION
Robert Kuskie brought an action for medical malpractice against Tennison Dong, M.D., and Malcolm Sperling, M.D. The issue of the statute of limitations was bifurcated and tried without a jury. The court found Kuskie had not filed his complaint within one year after he knew or should have known of the malpractice; accordingly, judgment was entered for the defendants. Kuskie contends the court's finding is not supported by substantial evidence. We agree and reverse.
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In 1979 Robert Kuskie was experiencing symptoms of hiatal hernia and esophageal ulcers. After a period of unsuccessful treatment, Kuskie's gastroenterologist referred him to Dr. Dong for surgery. In January 1980 Dr. Dong inserted a doughnut-shaped prosthesis, known as an “angelchik”, around Kuskie's esophagus at the juncture of the stomach in an attempt to increase pressure at that point and thus alleviate Kuskie's symptoms. Dr. Dong explained to Kuskie that this was a new procedure.
Although Kuskie initially improved, after about a year his symptoms recurred and he began to have difficulty swallowing. In June 1981 Dr. Dong determined adhesions had formed around the prosthesis, so he performed surgery to remove it.
Kuskie continued to feel miserable. He testified that within a few days of the surgery he realized it had not worked and he was upset. He was asked, “It was at that time that you began to think that maybe Dr. Dong had done something wrong?” Kuskie replied, “Yes, I'd say that.” When asked why he felt that way, Kuskie replied, “Well, it's the way it came out. But I had not felt nothing as far as malpractice in my mind at that time. I just felt nothing went right.”
A couple of months after the removal of the angelchik, Kuskie was operated on by Dr. Sperling for repair of the hiatal hernia. Kuskie felt better afterward “for a little while,” but within a week or 10 days he was experiencing the same symptoms again. “Q: So isn't it true, Sir, that you knew something was wrong again within a week or 10 days after Dr. Sperling's surgery? [¶] A: For myself physically, yes. [¶] Q: In other words, the same way after you felt from Dr. Dong's surgery when you felt lousy. Is the same true for Dr. Sperling? [¶] A: Yes, Sir.”
Kuskie continued to suffer from his symptoms and remained under treatment by his gastroenterologist. In July 1982 he saw Dr. Dong again regarding another hernia repair; Dr. Dong examined him and recommended against further surgery. Kuskie then saw another surgeon who performed a different procedure, but this was also unsuccessful.
Finally in February 1983, Kuskie's gastroenterologist sent him to Scripps Institute in San Diego where it was discovered that Kuskie had been taking aspirin at the rate of 16 per day since 1979. Kuskie was told the aspirin could be responsible for the irritation of his upper esophagus and to stop taking them. At that point, Kuskie became upset that none of his previous doctors had ever advised him against aspirin, and he contacted a lawyer. He filed his complaint against Dr. Dong, Dr. Sperling and others in June 1983, alleging negligence in his “examination and diagnosis ․, the prescription of medicines and drugs, and in particular the performance of surgeries ․, and in [his] care and treatment ․ following said surgeries․”
At trial, Kuskie's counsel explained Kuskie was not alleging the surgeries performed by Dr. Dong were below the standard of care. Rather, Kuskie was alleging Dr. Dong failed to inform him that he should discontinue the use of aspirin and that aspirin could cause the formation of adhesions and scar tissue, making the surgery necessary. Counsel planned to produce evidence “that the ulcers were severely aggravated by the continued use of aspirin because of the acedic [sic] effect and the continued use and prolonged use of aspirin which caused severe adhesions in the prosthesis that the plaintiff experienced in his esophagus.” The allegations of negligence against Dr. Sperling were that he performed surgery on Kuskie too soon after Dr. Dong's surgery and that he also failed to advise against the use of aspirin.
The court found Kuskie “was aware of [Dr. Dong's] malpractice immediately following the surgery of June 19, 1981 ․ and ․ knew or should have known of injury and any malpractice by Dr. Sperling within a few days after surgery on August 5, 1981 and did not file action until June 21, 1983.” On appeal, Kuskie contends there is no substantial evidence to support the conclusion that he discovered the negligent cause of his injuries before he was informed of the relationship between his symptoms and the use of aspirin.
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The governing statute of limitations for medical malpractice is Code of Civil Procedure section 340.5.1 Its applicable provisions are: “In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” The parties concede Kuskie's action was filed within the three-year limitation period. The question is whether he discovered his injury more than one year before filing his complaint.
“In order for the one-year limitation period to be triggered, a plaintiff must be aware of both the injury and its negligent cause.” (Steingart v. White (1988) 198 Cal.App.3d 406, 415, 243 Cal.Rptr. 678.) The plaintiff need not be aware of all the facts necessary to establish a claim for malpractice; rather, “the statute of limitations begins to run when the plaintiff suspects or should suspect that [his or] her injury was caused by wrongdoing, that someone has done something wrong to [him or] her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1111, 245 Cal.Rptr. 658, 751 P.2d 923.)
Here, Kuskie testified he suspected Dr. Dong and Dr. Sperling had done something wrong shortly after each surgery. Although Kuskie's testimony, when taken in context with other comments he made, could have been interpreted differently by another trier of fact, it is sufficient to support the trial court's conclusion that the action as it related to an injury caused by either doctor's negligent performance of surgery was filed too late.
But Kuskie claims he did not want to sue either doctor for negligence relating to the performance of surgery. Rather, he claims the negligent cause of his injury was the doctors' failure to “diagnose the taking of aspirin which subsequently caused the failure of the surgical interventions and [his] continued pain and suffering․” Kuskie claims there is no evidence to support the conclusion he discovered or should have discovered that particular negligent cause before February 1983.
Kuskie's argument has merit. His relationship with each doctor involved consultation, diagnosis, surgery and other treatment, and he is free to base his cause of action on any act or omission arising out of the relationship that he feels is the cause of his injury. Although there is no California case dealing with this precise point, a Missouri appellate court reached the same commonsense result when faced with a similar situation. In Maddox v. Truman Medical Center, Inc. (Mo.App.1987) 727 S.W.2d 152, the plaintiff alleged negligent diagnosis and negligent handling of her tissue specimen as well as the unnecessary removal of her lung. The biopsy and diagnosis occurred more than two years before the filing of the complaint, while the surgery was within the two-year limitations period. Finding the complaint timely, the court stated, “The allegations of specific negligence in diagnosing the lung tissue as cancerous when it was not and mis-labeling or mis-identifying some other patient's cancerous tissue as [plaintiff's] are allegations describing the background for the unnecessary surgery․ The petition does not allege any damage resulting from the actions taken prior to surgery, but alleges damages resulting from the completely unnecessary removal of one-half of [plaintiff's] left lung.” (Id. at p. 153.)
This result is consistent with the legislative purpose behind section 340.5. Before 1970 the period of limitations on medical malpractice actions was one year from the discovery of the injury. (Wells Fargo Bank v. Superior Court (1977) 74 Cal.App.3d 890, 895, 141 Cal.Rptr. 836.) As long as a plaintiff had no knowledge of his injury or its negligent cause, the limitations period could be postponed indefinitely, thus creating a situation which many felt contributed to the escalating costs of medical malpractice insurance. (Larcher v. Wanless (1976) 18 Cal.3d 646, 655, 135 Cal.Rptr. 75, 557 P.2d 507.) Section 340.5 retains the delayed discovery rule but places an outer limit of three years from the date of the injury.2 Thus, “the statute appears to have been a compromise between concern over the extended exposure of medical practitioners to malpractice liability and a desire not to bar potentially worthy plaintiffs from court before they have a fair chance to bring suit.” (Larcher v. Wanless, supra, 18 Cal.3d at p. 655, 135 Cal.Rptr. 75, 557 P.2d 507.)
Kuskie's suspicion shortly following the surgeries that the doctors had done something wrong had nothing to do with his later discovery that the aspirin may have caused his injury. This discovery was well within the three-year period of limitations; allowing Kuskie to pursue his claim preserves the balance between the competing concerns so carefully crafted by the Legislature.
The judgment is reversed. The trial court is directed to proceed with a trial on the merits of Kuskie's actions insofar as they are based on his discovery that the failure to advise him against taking aspirin may have caused his injury.
WALLIN, Acting Presiding Justice.
SONENSHINE and CROSBY, JJ., concur.
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Docket No: No. G006997.
Decided: August 31, 1990
Court: Court of Appeal, Fourth District, Division 3, California.
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